The suit accuses the two governments of “imposing unlawful curfews by abusing, misinterpreting, and improperly relying upon Declarations of States of Emergency and seeks damages “for losses occasioned by the unconstitutional and unlawful application” of the orders.
Late breaking: County Mayor Daniella Levine Cava indicated she will lift the County curfew on April 5 if the local COVID-19 positivity numbers continue their downward trend. County Commissioners or the courts could intervene in the meantime. Several Wynwood restaurants and bars have also filed suit to immediately end the County curfew. The story from the Miami Herald.
According to the Mr Jones lawsuit, the establishment “has been historically operated as a nightclub which specializes in live theatric performance on Miami Beach’s famous Lincoln Road, but which has altered its model to become a restaurant and lounge to comply with the Defendants’ operative Emergency Orders.”
At the heart of the suit is DeSantis’ Executive Order 20-244 issued September 25, 2020 which states, “No COVID-19 emergency ordinance may prevent an individual from working or from operating a business.” With regard to the operation of restaurants, the order states that any local government order limiting operations to less than 100% of indoor capacity must “(i) quantify the economic impact of each limitation or requirement on those restaurants; and (ii) explain why each limitation or requirement is necessary for public health.” The order also suspends individual fines and penalties.
Subsequently, then Miami-Dade County Mayor Carlos Gimenez issued an order allowing the reopening of retail and commercial establishments provided that they complied with certain requirements, including occupancy limits and closure between midnight and 6 am.
The County order, Mr Jones’ claims, “in addition to being preempted by [the Governor’s order], [is] irrational and arbitrary at best, lacks any legislative predicate for the significant limitations placed on restaurants and nightclubs, and presents no factual or logical basis to believe that COVID-19 is more likely to spread during (i) late night hours as opposed to daytime hours; and (ii) at restaurants as opposed to other businesses where people gather in large numbers in close proximity.
The City’s order, which allows ambient music only, permits live entertainment provided live performers are separated by a distance of at least ten feet from all audience members who must be at tables or in stationary seats. “The result of not being able to be open past 11:59 PM and not being able to play music above ambient sound level or feature entertainment above conversational level is necessarily an outright ban on nightclubs in the City of Miami Beach,” the lawsuit states.
Prior to the pandemic, Mr Jones’ operated under “a ‘table only’ model with no general admission where groups of people spend thousands of dollars to consume alcohol in the presence of Plaintiff’s theatrics…,” according to the filing. In order to comply with the County and City orders, Mr Jones “adopted a restaurant and lounge model which afforded customers a similar live performance theatric dynamic” as its previous nightclub model.
Mr Jones was cited for violating the City’s curfew on February 21 when, according to the City, it was operating past the midnight curfew. In the court filing, Mr Jones says while the club was emptying, a woman was knocked over and “fell to the ground and was bleeding.” Members of her group who had their backs turned when she fell, accused a man near her of causing her fall. A security camera review later indicated a member of her own group “accidentally knocked her down,” the suit says.
“Regardless, the members of the group wanted to physically attack this innocent man, and Plaintiff’s security team protected him by bringing him back into the establishment” while Mr Jones employees tended to the woman who refused medical attention. When police arrived, according to the suit, “[T]hey came to the front entrance and demanded that the injured woman be brought through the establishment from the back and to the front to speak with the police, rather than the police walking to the back.” The next day, the City issued a violation for operating past curfew and required the operators to sign an attestation to the violation in order to be allowed to reopen.
“Even though Plaintiff did not break the local ordinance because it ceased operation by 12 A.M. on the evening in question, and only had customers in the establishment to be either protected for their own safety or transported to the front at the command of police,” the suit states, “the curfew itself was unlawful” because of DeSantis’ order. Nonetheless, the business “found itself in a precarious and troublesome situation where it was being placed between the proverbial Scylla and Charybdis – either attest to guilt without the ability to appeal and promise compliance with local laws it felt were unlawful… or remain closed in perpetuity.”
Others have argued unsuccessfully that the Governor’s Executive Order pre-empts the County’s order. Tootsie’s Cabaret strip club won a challenge to the curfew in Circuit Court, but that decision was reversed on appeal and, last month, the King of Diamonds strip club lost a similar challenge in District Court that also included constitutional rights issues.
In the case of King of Diamonds, District Court Judge Robert Scola wrote, “In such situations, the Supreme Court and Eleventh Circuit precedents are clear: If the people’s elected representatives are acting in good faith and enacting regulations aimed at combating such crises and maintaining order, the unelected judiciary should defer to those decisions so long as they do not plainly and palpably invade fundamental rights without substantial relation to the government’s stated cause.”
Scola has already denied a request by Mr Jones for a temporary restraining order and preliminary injunction to stop the curfews writing that “Mr Jones Miami, utterly fails, in its motion for a temporary restraining order, however, to establish that injunctive relief is warranted in this case prior to affording the Defendants an opportunity to respond and be heard.”
In this latest challenge to the curfews, Mr Jones’ operators state, “[T]he County and City’s continued curfew through declaration of states of emergency,” normally reserved for civil unrest, “have the inevitable effect of taking away the last hope of many struggling businesses like [Mr Jones], leading to the permanent loss of hundreds of jobs at irreplaceable local eateries and bars.”
In addition to being pre-empted by the State, Mr Jones claims the curfews violate its constitutional rights of free speech, equal protection, and the right to assembly. The live theatric performances “for which Plaintiff is known and charges a significant premium are protected by the First Amendment as forms of expressive speech and entertainment.”
The curfews, the suit states, single out establishments like Mr Jones which normally operate during the curfew hours. “No other businesses are affected by the curfew including those which are similar in terms of density, occupancy and rise,” a violation of the Equal Protection Clause of the Constitution.
“The City’s interest in protecting against the virus is fully met by the social distancing and sanitary regulations imposed on restaurants and other businesses and restrictions on hours of operation do not further that interest… [T]here is no evidence to suggest that COVID-19 spreads more readily at night.”
The County and City “have already determined that occupancy restrictions, mask requirements, social distancing and sanitary precautions are sufficient to allow mass gatherings, including gatherings in restaurants during daylight hours, and there is no reason to believe that those efforts would fail or prove less efficacious at night,” according to the filing.
The suit also claims the City violated Mr Jones’ “federal and state due process rights by forcing Plaintiff to attest to guilt or else face full closure of its business, and by revoking its right to appeal in the Amended Notice of Violation” of the City’s curfew.
In addition to the City and County, the suit individually names Miami-Dade County Mayor Daniella Levine Cava and Miami Beach Interim City Manager Raul Aguila. Aguila provided this statement about the lawsuit:
"The City is required to adhere to the County’s curfew, which has been previously challenged and upheld by the court. The curfew is an essential measure in the City of Miami Beach and continues to be one of our most vital tools in assuring the continued health and safety of the City’s residents and visitors; particularly in the middle of our Spring Break, which is one of our highest impact periods. I have on many previous occasions urged, and will continue to urge, Mayor Levine Cava to keep the curfew in place. Yes — the economic recovery of our community is important, but it should not come down to a Hobbesian choice between the special interests of a select group of businesses weighed against the welfare and well being of our entire community.”
Robert Buschel of Buschel Gibbons, Bradford Cohen of Cohen & McMullen, and Jonathan Noah Schwartz of Jonathan Schwartz Law are co-counsels for Mr Jones Management LLC.